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| John L. Hill |
Wiens appealed her sentence and the SOIRA order to the British Columbia Court of Appeal, which dismissed her appeal in a unanimous decision delivered on May 21, 2025 (R. v. Wiens, 2025 BCCA 162).
Justice Sheri Donegan, writing for the three-judge panel, prefaced her reasons with an explanation of the pronouns used: “As a preliminary matter, I note that since her trial, the appellant has indicated that she uses she/her pronouns, and, as did the judge at sentencing, I will do so throughout these reasons.”
The appellant appealed the sentence and SOIRA order on the grounds that the judge rejected Wiens’s Indigeneity and failed to “meaningfully consider” Gladue principles in sentencing. Reliance was placed on the Supreme Court’s judgment in R. v. Gladue. [1999] 1 S.C.R. 688 and s. 718.2(e) of the Criminal Code.
“The defence advocated for a sentence of two years’ imprisonment, relying primarily on the involvement of intoxicants and the presence of Gladue factors to reduce the appellant’s moral responsibility in committing this offence,” Justice Donegan explained in her reasons for judgment. “The defence acknowledged that there was limited information available regarding the appellant’s Indigenous ancestry, but submitted that she had clearly suffered from intergenerational impacts of colonialism and systemic discrimination against Indigenous people.”
The trial judge noted that Wiens was 40 years old at the time of sentencing, had been raised in foster homes during her teenage years, and suffered from ADHD. A psychological assessment found her at low risk for future sexual violence. However, her record of 40 convictions from 2004 to 2022 for property, driving and drug offences, as well as failing to comply with bail and probation orders, indicated she was at high risk for general criminality.
The sentencing principles of denunciation and deterrence were deemed paramount in accordance with R. v. G.M., 2015 BCCA 165, and a sentence in the range of two to six years was seen as appropriate (R. v. Friesen, 2020 SCC 9).
The issue with her appeal was that there was insufficient information to assess Wiens’s Indigenous identity and her situation as an Indigenous person. While the court acknowledged Wiens’s claim of Mohawk heritage, it could not establish that this had significantly influenced the circumstances of the case, especially considering the seriousness of the charge and the vague connection to being an Indigenous individual from the Mohawk community.
Regarding the SOIRA order, Wiens had not met the burden of proving that there was no connection between the order and its specified purpose, nor that it would be grossly disproportionate. Therefore, the SOIRA order was permitted to remain in effect.
In reading the Appeal Court’s decision, one would expect it to be a ruling that aligns with convictions for similar wrongdoing across Canada. However, the judgment overlooks the elephant in the room, likely because it would be seen as politically incorrect to mention it. Michael Wiens is a transgender individual. As such, she would be placed and treated in a federal penitentiary. Although transgender inmates are housed according to their self-identified gender, such placement can be overridden by health and safety concerns. Research has shown that transgender inmates may face discrimination, threats, harassment and violence within the prison system.
A growing body of jurisprudence includes appeals of sentences that are permitted when an offender can demonstrate being subjected to particularly harsh prison conditions. A “Duncan” credit can be applied in mitigation of a sentence. The case of Boulachanis v. Canada (Attorney General), 2019 FC 456 altered the Correctional Service of Canada’s previous policy of placing inmates in institutions that corresponded to their gender identity at birth.
The problem with advocating for a Duncan credit on appeal is that there must be a basis to argue that the convicted person will suffer hardship once imprisoned. Specific questions should have been addressed at trial to a psychologist regarding how this accused individual can cope with ridicule and violence related to their treatment as a transgender inmate. Evidence of the physical and psychological torment that transgender inmates endure, which is not experienced by cisgender inmates, should have been presented at trial.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the [True Crime] Story (AOS Publishing). The Rest of the [True Crime] Story has been shortlisted for a prestigious Brass Knuckles Award, which is the Crime Writers’ of Canada’s prize for best nonfiction crime book of the year. Contact him at johnlornehill@hotmail.com.
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